Private International Law’s Origins as a Branch of the Universal Law of Nations

Abstract

This chapter examines ‘private’ international law’s divergence from ‘public’ international law in the late seventeenth to early nineteenth centuries and argues that this divergence was not as great as often believed. At the centre of this story was a new approach to conflicts of law propounded by the American jurist Joseph Story, who coined the term ‘private international law’ in 1834, and preceding Dutch jurists. Per Story and the Dutch school, a nation enforced a foreign law or judgment within its borders only as a matter of comity, rather than obligation. Accordingly, comity’s rise is conventionally understood to signal the decline of universalism in the law governing private transnational transactions. This chapter suggests, however, that Story and the Dutch school sought not to parochialize this law but rather to reconcile territorial sovereignty with the needs of international commerce by promoting comity principles that were universally applicable.